Agarwala, J.:— This is a defendant's appeal arising out of a suit for pre-emption.
2. The facts briefly stated are: There is a grove No. 1247 in Mahal ??? Thok Mohammad Naqi in the town of Amroha. The parties are cosharers in the Mahal. Defendants 2 to 6, namely, Syed Hasan, Munsif Hasan, Mst. Manzoor Fatma, Ahsan Hasan Khan and Mst. Fatma Sughra, sold their shares in the grove to Zamir Ahmad by means of a sale-deed, dated June 29, 1942 for a consideration of Rs. 200. Haidar Nazar filed a suit for pre-emption on the ground that he had, according to the custom of pre-emption prevailing with regard to the property in dispute, a preferential right and was entitled to preempt the property sold. He claimed the preferential right on the ground that he was a relation of the vendors in addition to his being a cosharer, while Zamir Ahmad, the vendee, was merely a cosharer. The defence inter alia was that there was a custom of pre-emption in Amroha, that, at any rate, if there was a custom it was in accordance with the Mohammadan law and that as the plaintiff had not performed the demand necessary under that law, he was not entitled to pre-empt the property. The trial court held that there was a custom prevailing in the town of Amroha whereby a cosharer, who was related, had a preferential right of pre-emption, that the plaintiff did not perform any demands and that the Mohammadan Law of pre-emption did not apply. It, therefore, decreed the suit. On appeal, the lower appellate court confirmed the trial court's decree.
3. In this second appeal by the defendant, four points have been urged before us; firstly, it has been urged that even if, there is a custom of pre-emption, the Mohammadan Law of pre-emption would apply because the parties are Mohammadans; secondly, that even if there is a custom, since it does not mention anything about the performance of demands, it is necessary to perform the demands and the plaintiff is not entitled to pre-empt in the absence of any demands having been made by him; thirdly, that even if there is a custom, it has ceased to exist because the land in dispute is in a Municipal area, and fourthly, that custom favouring a relation is not reasonable.
4. So far as the general principle urged by learned counsel for the appellant that as between Mohammadans the law applies in preference to custom is concerned, we have no hesitation in holding that in India this principle does not apply, except where by law the Mohammadan law has been made applicable to Mohammadans. It will be observed that the Mohammadan law applies to Mohammadans not in all, but in some matters only. The power of courts to apply Mohammadan law to Mohammadans is derived from and regulated partly by Statutes of the Imperial Parliament read with Article 225 of the Constitution of India but mostly by Indian legislation. Article 225 of the Constitution provides.
Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court…….shall be the same as immediately before the commencement of this Constitution.
5. It has not been urged before us that there is anything in the Constitution which has affected the law as it existed before the Constitution was passed so far as this matter is concerned.
6. In West Bengal, East Bengal, Bihar, Agra and Assam, under the Bengal, Agra and Assam Civil Courts Act, XII of 1887, civil courts are directed by Section 37 of the Act to decide all questions relating to succession, inheritance, marriage or any religious usage or institution by the Mohammadan law in cases where the parties are Mohammadans, except in so far as such law has, by legislative enactment, been altered of abolished. In cases not mentioned above nor provided for by any other law for the time being in force, the decision is to be according to justice, equity and good conscience.
7. The Shariat Act, XXVI of 1937, which came into force on October 7, 1937, provides that
where the parties are Muslims, the Muslim Personal Law shall be applied throughout India in the cases mentioned in Section 2 of the Act.
8. Section 2 enacts
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubara at, maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal law.
9. By Section 3, Muslim Personal Law is applied in cases of adoption, wills and legacies, if a Muslim competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872, and being a resident of India declares in the prescribed form that he desires to obtain the benefit of the provisions of that section.
10. The law relating to pre-emption, therefore, is not directed by any law to be applied to Mohammadans. It is applied on the ground of justice, equity and good conscience. But this rule is subject to the overriding principle the custom is a rule of law in the absence of statutory provision to the contrary. Where, therefore, there is a custom relating to preemption, the Mohammadan rule of pre-emption law is not to be applied even on the ground of justice, equity and good conscience.
11. The custom may incorporate into itself the incidents of the Mohammadan Law of preemption and in that case the Mohammadan law of pre-emption would be applied, not by reason of its own force but by reason of the force of the custom.
12. Where it is proved or admitted that there is a custom of pre-emption and nothing else is known or, in other words, the incidents of the custom are not known, the courts have raised a presumption that the incidents are the incidents prescribed by Mohammadan Law on the ground that the law of pre-emption is a special contribution of the Mohammadan Law to this country: vide Ram Prasad v. Abdul Karim,1 Jagdam Sahai v. Mahabir Prasad,2 Chakauri Devi v. Sundari Devi,3 Zamir Ahmad v. Abdul Razzaq,4 Jagmohan v. Brijendra Bahadur Singh 1924 A.L.J 572. and Jagannath v. Inderpal Singh.6
13. But where the incidents of the custom are known, no incidents prescribed by the Mohammadan Law can be deemed to be part of the custom, even though they may not be inconsistent with the known incidents of the custom. This is so because when the custom enunciates the incidents for its enforcement and applicability, the presumption is that it is complete by itself and does not stand in need of being limited or restricted by any other incident not expressly forming part of the custom. The addition of any other incident will necessarily limit the operation of the custom and that would, therefore, be deemed to be repugnant to it.
14. In the present case, the custom as recorded in the wajibularz is in the following terms:
If any cosharer wishes to transfer his proprietary interest either by sale or by mortgage, he will first offer it to a cosharer who is a relation in the order of nearness of relationship, and on his refusal to purchase, to other cosharers in the same thok, and on their refusal to the cosharers in the other thoks, or strangers.
15. The custom is complete by itself and can be enforced in the form in which it is recorded in the wajibularz. The fact that it does not make any mention of the demands prescribed by the Mohammadan law, shows that the making of demands is not necessary. The plaintiff being admittedly a relative and a cosharer, has a preferential right of pre-emption as against the vendees, and is entitled to pre-empt.
16. It is next urged that Amroha having been included within the limits of a Municipality, the custom recorded in the wajibularz has ceased to apply to it, and reliance has been placed upon the case of Ram Chand Khanna v. Goswami Ram Puri.7 In this case custom was sought to be proved by two incidents of preemption which has taken place long ago before the area in question became a Municipality. It was held that those instances would not be sufficient to prove the custom as applicable to lands within a Municipality. The facts of that were quite different from the facts of the present case, and, in our opinion, where it is proved that a custom applied to a certain area, the mere fact that the area has been included within the boundaries of a Municipality does not affect the applicability of the custom to that area.
17. We see nothing unreasonable in a custom relating to pre-emption providing for preferential treatment of relations. There is no force in this appeal and we dismiss it with costs.
18. Appeal dismissed.